2025 IL App (2d) 240536
No. 2-24-0536
Opinion filed September 3, 2025
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
GREGORY J. SMITH, as Beneficiary of the) Appeal from the Circuit Court
Estate of John E. Smith, Deceased, ) of Kane County.
)
Plaintiff-Appellant, )
)
v. ) No. 24-MR-50
)
MARGARET CONNOR, as Executor of the )
Estate of John E. Smith, Deceased, ) Honorable
) Kevin T. Busch,
Defendant-Appellee. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUTCHINSON delivered the judgment of the court, with opinion.
Presiding Justice Kennedy and Justice Mullen concurred in the judgment and opinion.
OPINION
¶1 Gregory J. Smith (Smith) appeals from the trial court’s dismissal of his first amended
complaint as time-barred under section 2-619(a)(5) of the Code of Civil Procedure (Code) (735
ILCS 5/2-619(a)(5) (West 2024)). Smith contends that his claim against Margaret Connor
(Connor) for breach of fiduciary duty was a claim against her in her personal capacity and not a
claim against the estate; as such, he argues, the claim is not subject to the provisions of section 18-
12(b) of the Probate Act of 1975 (Act) (755 ILCS 5/18-12(b) (West 2024)). For the reasons that
follow, we affirm.
2025 IL App (2d) 240536
¶2 I. BACKGROUND
¶3 On October 20, 2009, John E. Smith (decedent) executed a last will and testament (Will)
that appointed his daughter, Connor, as executor. The Will provided that if Connor was unable or
unwilling to act as executor, his son Smith would be appointed as successor executor. Relevant
here, the Will provided that decedent’s property be devised as follows: “One-eighth (1/8) of my
estate to my granddaughter, MARGARET MARY BLACK”; “One-eighth (1/8) of my estate to
my grandson, JACOB ANTHONY BLACK”; “One-fourth (1/4) of my estate to my daughter,
MARGARET ROSE CONNOR”; “One-fourth (1/4) of my estate to my son, GREGORY JOHN
SMITH”; and “One-fourth (1/4) of my estate to my son, JOSEPH EDWARD SMITH.”
¶4 Also on October 20, 2009, decedent granted Connor power-of-attorney, which included
the power “[t]o modify or change beneficiaries or joint tenancies.”
¶5 On September 18, 2002, decedent executed a beneficiary change to his Country life
insurance policy. Connor was made the primary beneficiary under the policy; Smith and Joseph
Smith were named as secondary beneficiaries if Connor predeceased them.
¶6 On January 27, 2021, decedent modified an account agreement for a Busey Bank interest
checking account to change the ownership to a joint tenancy with survivorship to Connor.
¶7 On March 30, 2021, decedent and Connor executed a certificate of deposit (CD) in the
amount of $15,003.78 with Busey Bank. The account’s ownership was held in joint tenancy with
survivorship to Connor.
¶8 On May 10, 2021, decedent, via Connor’s power-of-attorney, modified an account
agreement for a Busey Bank money market account to change the ownership to a joint tenancy
with survivorship to Connor.
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¶9 In addition to the foregoing accounts and policies, decedent had a Met Life total control
life insurance policy and Knights of Columbus life insurance policy. Both policies named Connor
as the beneficiary.
¶ 10 In May 2021, decedent suffered a stroke and was hospitalized in Urbana, Illinois. He was
subsequently placed in hospice care in Arlington Heights, Illinois, until he ultimately passed away
on July 25, 2021. As decedent was a resident of Tolono, Illinois, Connor directed the Steve Beckett
Law Office, LLC, to file the Will with the clerk of the circuit court of Champaign County on July
30, 2021.
¶ 11 On September 12, 2021, Connor e-mailed to the heirs the following:
“Here is the state of the estate:
$80,000 in a savings account
$15,000 in a CD that comes due Oct 2022
$10,000 in checking account
$7000 from life insurance policy through Knights of Columbus[.] Trying to get the
$11,000 from another life insurance policy through Country Companies.
…
I am working on closing out these accounts and getting funds disbursed, however I
still do not have the death certificate yet.
Working our way through it!”
¶ 12 On December 7, 2021, Connor e-mailed Smith that she would “keep [him] posted on how
we are moving forward with getting an executor hired for the Will.” The e-mail contained a
forwarded correspondence between Connor’s husband, Jim Connor, and their attorney with
Robinson Payne, LLC, which read as follows:
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“You had helped us set up our estate plan, and wanted to reach out to get some advice.
Marge’s father passed away this summer, and Marge was set up as the executor of
the will.
Her father was remarried after his first wife died.
There is no trust tied to his general assets, just the will.
There is a real estate trust that is tied to the house that he and his new wife owned
together.
That (hopefully) is working its way through the process. But as part of the trust
resolution, there was one family member who accused Marge of taking money that was not
hers.
Not a good situation, but not uncommon.
So, for the remainder of the estate, she was looking for someone to step in and be
an executor or provide a service around the execution of the will.
What is the right way to do this, and do you have any recommendations?”
¶ 13 On April 17, 2023, attorney J. Steven Beckett sent the following e-mail to the heirs:
“Dear Smith Heirs:
Marge Connor has contacted me asking for assistance regarding the distribution of
funds that she received as a result of the death of your father and grandfather, John E.
Smith.
I must disclose at the outset that I was a friend of John’s and a brother Knight of
the Knights of Columbus at St. Patrick’s Church in Urbana. I am sure that John would be
disappointed that there were any disagreements among you that would rise to the level of
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2025 IL App (2d) 240536
needing my assistance; but I do want to assist in hopefully having the Smith Heirs arrive
at an agreement.
Marge has dutifully collected the funds from the Busey Bank checking account and
certificate of deposit that she held with John. She has filed and received the proceeds of
the life insurance claims with Knights of Columbus, Total Control Life Insurance Company
and Country Companies. She acknowledges she processed the claims, received the funds
and paid last expenses related to John’s death as an informal trustee or executor, because
no formal probate proceeding would be necessary.
My understanding is that Smith Heirs do want the distribution to occur, but have
not been able to achieve an agreement on the structure and documentation of the
distribution. I have drafted a proposed Smith Heirs Distribution Agreement and Mutual
Release for your consideration. Once the funds have been distributed there should be no
claims or disagreements amongst the heirs and that should be documented. I have attached
the proposed agreement to this electronically sent letter.”
The attached proposed agreement read as follows:
“Smith Heirs Distribution Agreement and Mutual Release
The parties hereto, the Heirs of John E. Smith, covenant and agree as follows:
Whereas John E. Smith died on July 25, 2021, leaving as his heirs (1) Margaret
Connor, daughter, (2) Gregory J. Smith, son (3) Joseph Smith, son and (4) Jacob Black and
Margaret Czernia, grandchildren—the children of Donna Black, deceased;
Whereas John E. Smith left a Last Will and Testament and there have been no
probate proceedings regarding said will, but which provisions distribute the probate estate
of John E. Smith in four shares for his four children;
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2025 IL App (2d) 240536
Whereas John E. Smith had payable on death a bank account and certificate of
deposit at Busey Bank, a life insurance policy with Knights of Columbus payable on death,
and a life insurance policy with Total Control Life Insurance payable on death—all payable
to Margaret Connor and which have all been processed into one fund;
Whereas the payable on death provisions of the bank holdings and life insurance
policies were intended by John E. Smith to be an informal trust held by his daughter,
Margaret Connor, as Trustee, from which the proceeds should be divided among his heirs
as provided in his Last Will and Testament;
Whereas the parties wish to abide by the wishes of their father and grandfather, and
distribute the fund that has been created by the processing of the bank accounts and life
insurance claims;
Now Therefore It is Agreed Between the Parties:
1. Description of Assets in John E. Smith Fund: Margaret Connor has collected the
proceeds from Busey Bank account 0505 and Certificate of Deposit, and the proceeds of
the two life insurance policies. The Knights of Columbus Life Insurance proceeds were
$7,413.11. The Total Control Life Insurance proceeds were $11,687.55. All funds to be
distributed to the John Smith heirs are currently in accounts at Busey Bank. The accounts
at Busey Bank are to be distributed in accordance with the provisions of the John E. Smith
Last Will and Testament, and the heirs recognize that such a distribution will not require
probate proceedings in the Circuit Court of Champaign County.
The funds available for distribution at the time of this agreement are:
Busey Bank Pillar Checking $ 48,625.27
Busey Bank Pillar Money Market $ 110,019.63
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2025 IL App (2d) 240536
Busey Bank Certificate of Deposit $ 14,874.18
Total Smith Fund for Distribution $ 173,519.08
2. Expenses and Net Funds for Distribution. The parties have incurred legal fees to
Robin Payne LLC in the amount of $ 4,479.50, and $580.00 to Steve Beckett Law Office
LLC which have been paid from the Smith Fund, with the current balance of funds at Busey
Bank, set forth in Paragraph 1 above, having already reflected said expenses. The
additional legal fees for Steve Beckett Law Office LLC, assuming execution of this
agreement shall be $1,000.00. The net funds for distributions are $172,519.08.
3. Distribution to Smith Heirs. Each of the Smith Heirs shall receive a distribution
consistent with the terms of the Last Will and Testament of John E. Smith as follows:
Margaret Connor (25%) $ 43,129.77
Gregory J. Smith (25%) $ 43,129.77
Joseph Smith (25%) $ 43,129.77
Jacob Black (12.5%) $ 21,564.89
Margaret Czernia (12.5%) $ 21,564.88
Total Distributed $172,519.08
The funds are held in interest bearing accounts and any earnings shall be allocated
in accordance with the appropriate beneficiary shares at the time of distribution.
4. Acceptance of Disclosure. Margaret Connor covenants that she has made full
disclosure of the assets that were payable on death to her following the death of John E.
Smith, and any and all proceeds that she has received or controlled as a result of his death.
The parties have received and accepted the disclosure of these assets. Margaret Connor has
paid from the Smith Fund, or from separate funds all claims or indebtedness of John E.
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Smith and no claim has been presented to her for the Smith Funds, except for the
distribution claims of the parties and the legal expense incurred in connection with the
distribution of funds to the parties hereto.
5. Smith Residential Trust Agreement Claims and Litigation. The parties
acknowledge the existence of the Smith Residential Trust Agreement, dated March 29,
2013, and pending litigation in Champaign County Circuit Court as case number 2022 CH
028 Catherine Brown, Trustee v. Margaret Connor et al, This Distribution Agreement is
separate and apart from any issue related to the pending litigation and claims thereunder;
No provision of this agreement shall have any effect upon the claims of the parties
thereunder.
6. Merger and Mutual Release. This agreement is the entire agreement of the
parties. No other agreements exist, and no provision of this agreement may be modified
unless done so in writing signed by all the parties. The parties hereto release and discharge
each other from any liability associated with the death and potential probate of the affairs
of John E. Smith to the fullest extent possible.
7. Separate Signatures. Each of the parties shall execute this agreement on a
separate signature page. Upon completion of the document by return of all signature pages,
a complete document with all signatures will be transmitted to all parties.”
¶ 14 On February 2, 2024, Smith initiated the underlying proceedings by filing a three-count
complaint for declaratory judgment, breach of fiduciary duty, and an accounting of the estate.
Connor filed a motion to dismiss pursuant to section 2-619(a)(5) and (a)(9) of the Code (735 ILCS
5/619(a)(5), (9) (West 2024)). Connor asserted that Smith’s claims were time-barred by the
provisions of section 18-12(b) of the Act (755 ILCS 5/18-12(b) (West 2024)). Further, Connor
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averred that the estate had no assets and, therefore, was not required to be admitted to probate.
Finally, Connor stated that she tried to distribute her father’s proceeds to the heirs in harmony with
his wishes in the Will. She supported the motion to dismiss with an affidavit pursuant to Illinois
Supreme Court Rule 191(a) (eff. Jan. 4, 2013). Therein, she attested that she received funds from
decedent’s life insurance policies and deposited them into the Busey Bank accounts that she held
in joint tenancy with right of survivorship. She further attested that the funds in the Busey Bank
accounts were not estate assets as they passed directly to her following her father’s death.
¶ 15 Smith filed an affidavit pursuant to Illinois Supreme Court Rule 191(b) (eff. Jan. 4, 2013),
asserting that Connor had to be deposed to determine (1) when and how she provided notice to
Smith that the Will was filed in Champaign County; (2) whether the Busey bank accounts were
opened by decedent and Connor jointly and whether decedent intended those funds to be estate
assets; and (3) why Connor mailed Smith a check for $42,727.56 on two separate occasions if she
believed the funds belonged to her through survivorship.
¶ 16 On April 11, 2024, Connor gave deposition testimony pursuant to Rule 191(b). Connor’s
testimony did not contradict any of the pleadings discussed in the foregoing regarding decedent’s
accounts and insurance policies. She testified that the funds from those accounts and insurance
policies passed to her through survivorship and she attempted to distribute those funds in a manner
consistent with decedent’s wishes as expressed in the Will. Connor did admit that she never had
any intent to hire an executor as expressed in her December 7, 2021, e-mail to Smith.
¶ 17 On April 23, 2024, Smith filed a three-count first amended complaint (amended
complaint). Relevant here, count II alleged breach of fiduciary duty against Connor. 1 Smith alleged
1
In in his brief presented to this court, Smith does not challenge the dismissal of count I for
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2025 IL App (2d) 240536
that Connor and attorney Beckett refused to answer his questions as to why the legal fees incurred
by Connor were necessary to fulfill her duties as executor, as Smith believed the fees to be
unrelated to such duties. He alleged that Connor breached her fiduciary duties by:
“a. Failing to notify Plaintiff or any of the heirs that John Smith’s Will was filed
with the Clerk of the Circuit Court of Champaign County;
b. Attempting to administer the distribution of the Estate Assets to the Heirs without
first opening a probate estate;
c. Incurring unnecessary costs and legal fees from Robinson Payne LLC and Steven
Beckett Law LLC, which were unreasonably related to Defendant’s fulfillment of her
duties as executor;
d. Engaging in self-dealing by placing her own interest above Plaintiff’s and the
heirs;
e. Failing to provide an accounting of costs and legal fees, although repeatedly
demanded;
f. Failing to keep Plaintiff and the heirs reasonably informed; and
g. Misrepresenting and concealing facts regarding John Smith’s Estate and the
Estate Assets in her capacity as Executor, to Plaintiff’s detriment.”
Smith sought to be named as successor executor as per the terms of the Will due to Connor’s
alleged unwillingness to perform her duties.
declaratory judgment or count III seeking an accounting of the estate. As such, any contentions related to
the dismissal of those counts are deemed forfeited for the purposes of the present appeal. See Ill. S. Ct. R.
341(h)(7) (eff. Oct. 1, 2020).
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2025 IL App (2d) 240536
¶ 18 On August 14, 2024, the trial court held a hearing on Connor’s motion to dismiss. The trial
court granted the motion and dismissed Smith’s amended complaint, with prejudice. Relevant here,
it found that the claim for breach of fiduciary duty was “really relate[d] to the administration of
the estate and claims against the estate” and was time-barred as filed outside the two-year statute
of limitations, pursuant to section 18-12 of the Act (755 ILCS 5/18-12 (West 2024)).
¶ 19 This appeal followed.
¶ 20 II. ANALYSIS
¶ 21 Smith contends that the trial court erred in dismissing his amended complaint because the
claim for breach of fiduciary duty was not a claim against decedent’s estate under section 18-10
of the Act but, rather, a claim against Connor. As such, his claim for breach of fiduciary duty is
not subject to the limitations period prescribed by the Act.
¶ 22 Section 2-619(a)(5) allows for the dismissal of a cause of action if “the action was not
commenced within the time limited by law.” 735 ILCS 5/2-619(a)(5) (West 2024). “When
deciding a motion based on section 2-619 of the Code, a court accepts all well-pleaded facts in the
complaint as true and will grant the motion when it appears that no set of facts can be proved that
would allow the plaintiff to recover.” Lawler v. University of Chicago Medical Center,
2017 IL
120745, ¶ 11. Pleadings and supporting documents should be construed “in the light most
favorable to the nonmoving party.” Dawkins v. Fitness International, LLC,
2022 IL 127561, ¶ 24.
An order granting a section 2-619 motion to dismiss is subject to de novo review. Lawler,
2017 IL
120745, ¶ 11.
¶ 23 Section 18-10 of the Act classifies claims against the estate as, inter alia, claims related to
“[t]he surviving spouse’s or child’s award.” 755 ILCS 5/18-10 (West 2024). Smith’s amended
complaint identifies himself as decedent’s son with “an apparent legal, tangible interest in the
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2025 IL App (2d) 240536
proper administration and distribution of [decedent’s] Will and Estate Assets.” His amended
complaint further alleges that Connor “misappropriated Estate Assets” and refused to act as
executor of decedent’s estate. In his amended complaint, Smith sought to replace Connor as
executor, an accounting of estate assets, and distribution of estate assets to himself and the other
heirs due to Connor’s alleged misappropriation. Thus, the allegations in Smith’s amended
complaint identify him as a surviving child seeking an award through his claims against Connor
in her capacity as the executor of the estate pursuant to section 18-10 of the Act.
¶ 24 Section 18-12(b) of the Act provides as follows:
“(b) Unless sooner barred under subsection (a) of this Section, all claims which
could have been barred under this Section are, in any event, barred 2 years after decedent’s
death, whether or not letters of office are issued upon the estate of the decedent.” Id. § 18-
12(b).
Consequently, a claim that is not filed against the estate within the limitations period is barred.
In re Estate of Bohn, 2019 IL App (1st) 173083, ¶ 14. Compliance with section 18-12(b) is
mandatory, and no exception to the filing period may be engrafted by judicial decision. In re Estate
of Topal,
2022 IL App (4th) 210613, ¶ 18. The time for filing a claim begins to run at the date of
death, and it continues to run even if, as here, no formal probate estate is opened within the two-
year period. Id. ¶ 19.
¶ 25 In Polly v. Estate of Polly,
385 Ill. App. 3d 300 (2008), a widow sued her husband’s estate
for breach of contract of a prenuptial agreement and for an accounting. Her husband had died on
June 4, 2003, and the relevant complaint was filed against the defendant estate on November 2,
2005. The trial court and the appellate court held that the two-year limitations period for filing a
claim against the estate barred the widow’s claims.
Id. at 305. The widow’s counts were contractual
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2025 IL App (2d) 240536
“claims” against the estate rather than assertion of rights as an heir under the will; therefore, in
accordance with section 18-12 of the Act, the widow had two years from the date of her husband’s
death to inform the estate of her claims. Id. at 304-05. The widow, however, failed to do so and
thus her claims were barred by section 18-12 of the Act. Id. at 305.
¶ 26 In In re Estate of McDonald,
2024 IL App (2d) 230195, the petitioner sought to assert her
rights as the decedent’s putative spouse more than two years after his death. The petitioner objected
to the estate administrator’s amended distribution plan and filed a motion for leave to file amended
objections to the amended proposed distribution plant. Id. ¶ 20. She also filed a motion to amend
the trial court’s heirship order. Id. ¶ 22. The administrator argued, and the trial court agreed, that
the petitioner was making a claim against the estate that was barred by section 18-12 of the Act.
Id. ¶ 23. On appeal, this court affirmed the trial court’s decision by holding that petitioner was
pursuing a cause of action under the Act as her motions constituted a claim against the estate. Id.
¶ 36. Petitioner’s motions sought distribution of the entirety of the estate to her as the sole heir,
thus reducing the value of the estate’s assets. Id. ¶ 38. As the motions were filed more than two
years after the death of decedent, this court held them to be untimely pursuant to section 18-12(b)
of the Act. Id. ¶ 40.
¶ 27 Smith attempts to distinguish the two foregoing cases here. He argues that his claims are
distinguishable because he does not seek to distribute the entirety of the estate to himself as sole
heir. He argues that his claims, if successful, would not reduce the value of the estate, nor do they
attempt to invalidate the Will. Smith asserts that his amended complaint’s claim for breach of
fiduciary duty seeks relief against Connor for duties owed to him. We disagree. As this court held
in both Polly and McDonald, a cause of action filed by an heir seeking distribution of estate assets,
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2025 IL App (2d) 240536
or for an accounting of estate assets, is a claim against the estate under the Act. See id. ¶ 38; see
also Polly,
385 Ill. App. 3d at 302.
¶ 28 The Act requires that any claim that might be filed within the contemplation of the Act,
whether based on contract, tort, or otherwise, must be filed within the limitations period that the
Act provides. Rozycki v. Gitchoff,
180 Ill. App. 3d 523, 525 (1989). If such a claim is not filed, it
will be barred and cannot be pursued in a separate proceeding.
Id. Here, Smith filed an amended
complaint against Connor in her capacity as the executor of decedent’s estate more than two years
after his father’s death. All the operative facts of the amended complaint and the causes of action
alleged clearly constitute claims against the estate under the Act and were properly dismissed as
time-barred by the trial court.
¶ 29 We must briefly address the breaches of fiduciary duty alleged in Smith’s complaint. First,
Smith cites no statutory authority or case law that stands for his assertion that Connor was required
to notify him of the filing of the Will in Champaign County. This court is unaware of any such
requirement. Second, Smith fails to develop the argument that Connor was required to submit the
Will to probate when all funds from decedent’s accounts and insurance policies passed directly to
her through survivorship.
¶ 30 It is unclear what Smith would gain even if this court were to agree with his positions. The
Will and the record on appeal clearly illustrate that Connor has attempted to honor her father’s
express wishes. It is true that decedent’s accounts and insurance policies passed directly to her
through survivorship, but she attempted to liquidate those funds and distribute them to the heirs as
prescribed by the Will. There were no assets of the estate, and Connor could have easily taken the
funds through survivorship and done nothing else. With no assets to distribute, she arguably had
no fiduciary duty to Smith in the first place, but that is a point we need not reach. Smith’s main
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point of contention seems to revolve around Connor’s incurrence of just over $5,000 in legal fees
related to advice and assistance she received to honor the wishes in the Will and distribute the
proceeds of the accounts to the heirs. Such contention is meritless. In any event, as Smith’s claims
were filed more than two years following his father’s death, they are untimely under the Act. See
755 ILCS 5/18-12(b) (West 2024).
¶ 31 III. CONCLUSION
¶ 32 For the reasons stated, we affirm the judgment of the circuit court of Kane County.
¶ 33 Affirmed.
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Smith v. Connor, 2025 IL App (2d) 240536
Decision Under Review: Appeal from the Circuit Court of Kane County, No. 24-MR-50;
the Hon. Kevin T. Busch, Judge, presiding.
Attorneys Myles R. Carroll, of KMA Zuckert LLP, of Chicago, for
for appellant.
Appellant:
Attorneys Samuel G. Harrod IV, of Meltzer, Purtill & Stelle LLC, of
for Schaumburg, for appellee.
Appellee:
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